Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

For natural-person defendants, as here, the claim or claims against Guarantors must arise out of their “trade, business or profession.”  (Code Civ. Proc., § 483.010(c).)  If the sum total of the circumstances justifies the conclusion that the guarantor occupied himself to a substantial degree and on a continuing basis in promoting his own profit through provision of credit or management to the primary obligor, a guarantee executed in the course of such activity may properly be considered an obligation arising out of the conduct of the guarantor’s business. (Advance Transformer Co. v. Superior Court (1974) 44 Cal. App. 3d 127 (finding attachment proper where a husband and wife guaranteed a promissory note as payment for business materials of a closely held corporation); Douglas v. Smith 2010 U.S. Dist. LEXIS 41577 *6-9 (C.D. Cal. April 28, 2010) (attachment may issue against individual guarantor who is in the business of extending credit generally, or so involved in the primary obligor’s business that the guaranty is made to further the guarantor’s livelihood or profit on a continuing basis).  

Here, Plaintiff argue the Lease and Guaranty were executed in the context of a commercial leasing transaction with Guarantors directly involved in the Tenant’s business enterprise.  While Kagasoff and Patadia do not dispute Plaintiff’s claims that the Guaranty arises out of each of their “trade, business or profession,” Ware argues that he was not materially involved in the business of the Tenant and was merely a passive investor.  (Ware Decl. ¶2.)  Plaintiff presents no evidence to contradict Ware’s claim.  Accordingly, the Court denies the writ of attachment as to Ware.    

 

Probable Validity 

“A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc., § 481.190.)  Here, Plaintiff has shown it is more likely than not to obtain a judgment against Guarantors on its claims.   

Plaintiff satisfies all elements of a claim for breach of contract.  A breach of contract claim requires proof of: (1) the existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach of the contract; and (4) the resulting damages to the plaintiff.  (Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821.)   

Here, Plaintiff has shown the existence of a contract -- the written Guaranty (and underlying Lease) that binds Guarantors. (Zamudio Decl., ¶¶3, 5-6, Ex. A, B (Guarantors promised “absolutely” and “unconditionally” to fully and timely perform all of Tenant’s obligations).)  Plaintiff has performed all obligations required of it under the terms of the Lease and Guaranty, except for those obligations excused or not justified.  (Zamudio Decl., ¶9.)  Plaintiff has submitted admissible evidence that the Guarantors, and each of them, have breached the Guaranty by failing to pay rent due under the Lease.  (Zamudio Decl., ¶¶8, 10, Exs. A-C.)  The evidence also establishes that Guarantors are jointly and severally liable for the unpaid rent.  (Zamudio Decl., ¶¶5-6, 13, Exs. A, B.)  As a proximate result of Guarantors’ breaches, Plaintiff has suffered and continues to suffer substantial damages, which are fixed and readily ascertainable, in the amount of, after the security deposit is applied, $491,700.15. (Zamudio Decl., ¶¶12-13.)  Furthermore, Plaintiff was compelled to retain counsel and initiate legal proceedings to enforce the Guaranty, incurring estimated attorneys’ fees and costs of $60,000.  (Zamudio Decl., ¶¶3, 5, 13, Exs. A-B.)  

In sum, Plaintiff has established through competent and admissible evidence that its breach of contract claim is probably valid.   

Purpose and Amount of Attachment 

Code Civ. Proc. § 484.090(a)(3) states that the Court shall issue a right to attach order if “the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based . . . [and] the amount to be secured by the attachment is greater than zero.” 

Plaintiff declares that the attachment is not sought for a purpose other than the recovery on Plaintiff’s claim.  (Appl. ¶ 4.)  The amount to be secured is greater than zero.   Based on the foregoing, the Court determines that Plaintiff has complied with Code Civ. Proc. § 484.020(c). 

 

Subject Property 

Where, as here, the Guarantors are natural persons, Code Civ. Proc. § 484.020(e) requires that Plaintiff provide a description of the type of property subject to attachment that is “reasonably adequate to permit the defendant to identify the specific property to be attached.” (Id.)  Language that tracks Code Civ. Proc. 487.010(c) is reasonably adequate.  (Bank of America v. Salinas Nissan, Inc. (1989), 207 Cal. App. 3d 260, 267-68.)  Plaintiff’s request here to attach “all” property of Guarantors listed in Code Civ. Proc. section 487.010(c) and (d) (as applicable), overcomes any alleged objection that such description is not “reasonably adequate to permit the defendant to identify the specific property sought to be attached.”  Furthermore, Plaintiff is entitled to seek and attach all of Guarantors’ property which is not exempt, including Guarantors’ respective interests in real property, “whether or not it is business related.”  (Post-A-Traction, Inc. v. Kelly-Springfield Tire Co., 112 F. Supp. 2d 1178, 1183 (C.D. Cal. May 26, 1999); quoting Ahart, California Practice Guide: Enforcing Judgments and Debts, P 4:82 (1998 rev.).)  Thus, Plaintiff’s applications comply with the standards articulated in Code Civ. Proc. §§ 483.010(a), 484.020, 487.010(a), and 484.090(a)(1), (3), and (4). 

 

Exemptions 

 

Guarantors claim exemptions.  Kagasoff claims exemption of (1) common household items and personal property used in his trade and business in the amount of $8,725 and (2) his 2015 Lexis CT200H and a Buick Enclave for a maximum exemption of $7,500.  Patadia claims an exemption of common household items and personal property used in his trade or business in the amount of $8,725.  These exemptions are authorized under Code Civ. Proc. §§ 704.010 (car), 704.020 (household furnishings) and 704.060 (tools of the trade).  

Reduction of Amount to be Secured 

Code of Civil Procedure section 483.015(b) provides that the amount to be secured by the attachment shall be reduced by, inter alia: 

 

(2) The amount of any indebtedness of the plaintiff that the defendant has claimed in a cross-complaint filed in the action if the defendant’s claim is one upon which an attachment could be issued. 

 

(3) The amount of any claim of the defendant asserted as a defense in the answer pursuant to Section 431.70 if the defendant’s claim is one upon which an attachment could be issued had an action been brought on the claim when it was not barred by the statute of limitations. 

 

“[T]o sustain reduction in a writ amount, most courts require that the defendant provide enough evidence about its counterclaims and/or defenses to prove a prima facie case [for attachment against Plaintiff].”  (Ahart, California Practice Guide: Enforcing Judgments and Debts, ¶ 4:64 (1998 rev.).) 

There is no claim that the amount of attachment should be reduced by an attachable cross-claim or affirmative defense.  

 

Undertaking  

Code of Civ. Proc. § 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment.  Code Civ. Proc. § 489.220 provides, with exceptions, for an undertaking in the amount of $10,000.  Neither party contends that another amount of undertaking should be required.  

CONCLUSION 

For the foregoing reasons, the Court GRANTS the applications for writ of attachment as to Ricky Kagasoff and Abhishek Patadia subject to their claimed exemptions and DENIES the application for writ of attachment as to Kevin Ware.  Plaintiff is required to post an undertaking of $10,000.   

DATED:  November 13, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court